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Robocalls lawsuit offers an inside look at how Macy's chases debtors

CINCINNATI - Macy’s Inc. offered a peek behind the curtain of its debt-collection practices this week while defending itself from a lawsuit alleging it made robocalls in violation of the Telephone Consumer Protection Act.

Orlando, Florida resident Deborah Clark claims she was harassed by automated calls for more than a year by Macy’s, even after she told the company that it was her daughter’s debt – not hers. Clark claimed Macy’s called her “several times during one day, and on back-to-back days,” wasting her time, using up her cell phone minutes and “depleting her battery life.” She’s asking for her case to be certified as a class action for all consumers who received similar calls in the last four years.

In a 13-page affidavit, Macy’s executive Daniel Delgado said Clark’s daughter “gave consent to call the cell phone number” at the heart of the dispute.

“The first call … occurred on July 28, 2015 and the last call occurred on September 5, 2015. There were a total of 37 calls made to this cell number,” stated Delgado, the Clearwater, Florida-based director of collections for FDS Bank, a Macy’s subsidiary.

Delgado’s redacted affidavit offers extensive detail on Macy’s handling of delinquent loans, which begins with FDS Bank then transfers to Department Stores National Bank after 120 days. DSBN is a service company created by Macy’s and Citibank to jointly handle the credit card operations of Macy’s and Bloomingdale’s department stores.

“According to FDS Bank’s records, the number at issue … is a cell phone number that was obtained by DSNB on October 17, 2014 through a skip trace process,” Delgado explained. “A skip trace is a process by which a collector uses third party sources to try and find an active and valid telephone number for a customer that the company has not been able to contact through other means.”

Because it was obtained through a skip trace, Delgado said the number “would only be called manually” until Clark's daughter gave permission to call it. That happened on July 23, 2015, according to Delgado’s affidavit. None of the 37 calls that followed were answered. But on Sept. 6, the daughter asked FDS Bank to stop calling.

“This number, along with another phone number on the account, were coded as (redacted) to stop the collection calls. There were no further calls made to this number,” Delgado said. “If FDS Bank learns that it is dialing a wrong number, it will stop calling that number. It makes no economic sense to continue using resources to call someone who does not owe FDS Bank any money.”

This isn’t the first time Macy’s has faced claims involving robocalls. In 2016, it settled
a class-action lawsuit involving calls to 1.2 million people. Macy’s agreed to pay $12.5 million to settle the claims. About $2.5 million of that was paid to lawyers, while $15,000 went to the named plaintiff, Ameer Hashaw. He claimed in a 2013 lawsuit that Macy’s auto-dialed his cell phone 112 times in two months.

"The Hashaw case involved claims accruing on or before July 22, 2015,” said Clark’s attorney, Billy Peerce Howard, in a July 17 court filing. “Hashaw did not include a class of persons who revoked consent; whereas here, even more egregiously than in Hashaw, Macy’s continued to make wrong-number calls after it was indisputably put on notice that it was calling the wrong person’s cellular phone.”

Macy’s has challenged Clark’s request for class certification with more than a dozen arguments, claiming that she waited too long to file her federal complaint and her proposed definition for the class of plaintiffs is too vague and too broad.

Delgado’s affidavit supported this argument, as Macy’s claimed it doesn’t keep a list of calls made after a customer tells it to stop calling. It merely documents the request in the notes of debt collectors and removes the account from its call list.

“FDS Bank policies are designed to prevent a customer from being called once they have revoked consent to call their cell phone,” Delgado stated. “If a call did happen after revocation of consent, it would be an exception to the rule. The only way to determine if that had happened, and if so, in what accounts, would be to conduct an individual search of each and every account that FDS Bank has had over the last four years. This would involve tens of millions of accounts.”

Delgado also argued the calls are meant to help consumers, not annoy them.

"The longer an account is delinquent, the money that is owed increases and may overwhelm the customer so that they are unable to pay their full balance," he said. "By calling at the first sign of delinquency, my team strives to keep the delinquent amount from becoming too large and aid the customer in getting back on track."

U.S. District Judge Carlos Mendoza has scheduled a mediation hearing next May and a trial date of Nov. 5, 2018.

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